The court affirmed the conviction for murder based on a credible dying declaration corroborated by medical evidence, establishing the appellant's guilt beyond reasonable doubt.

JUDGMENT :

Joymalya Bagchi, J. :-

1. Appeal is directed against judgment and order dated 10.01.2023 and 11.01.2023 passed by the learned Additional District & Sessions Judge, FTC-1, Raiganj, Uttar Dinajpur in Sessions Trial No. 11 of 2023 arising out of Sessions Case No. 03 of 2013 convicting the appellant for commission of offence punishable under Section 302 of the Indian Penal Code and sentencing him to suffer imprisonment for life and to pay fine of Rs.10,000/-, in default, to suffer rigorous imprisonment for six months more.

Prosecution case:-

2. Prosecution case alleged against the appellant is as follows:-

On 04.07.2012 at 9.30 PM one Buddiswar Sarkar was gossiping with appellant at Netaji Subhas Colony (Baiosh Ghar Colony). At that time his father viz., Radha Ballav Sarkar (PW 1) heard sound of firing and rushed to the spot. Enquiring from his son, he came to know Mahendra (i.e. the appellant) had fired at his abdomen resulting in bleeding injury. Buddiswar was taken to Raiganj Sadar Hospital but in view of his critical condition he was referred to a nursing home at Siliguri where he expired the next day.

3. On the written complaint of PW 1, Raiganj P.S. Case No.622 dated 05.07.2012 under Sections 341/326/307/506 of the Indian Penal Code was registered for investigation. Upon death of Buddiswar, Section 302 of the Indian Penal Code was added.

4. During investigation the appellant was arrested. Pursuant to his statement (which was videographed), firearms i.e. pistol, pipegun with live cartridge and one empty cartridge were seized. Charge sheet was filed against the appellant.

5. Charge was framed under Section 302 of the Indian Penal Code and under Sections 25/27 of the Arms Act. During trial, prosecution examined 13 witnesses and exhibited a number of documents to prove its case. The defence of the appellant was one of innocence and false implication.

6. In conclusion of trial, the trial Judge by the impugned judgment and order dated 10.01.2023 and 11.01.2023 convicted and sentenced the appellant, as aforesaid.

7. PWs 1, 2 and 3 are the parents and wife of the deceased. They are the most vital witnesses.

8. Radha Ballav Sarkar (PW 1) is the father of the deceased and the de-facto complainant. He deposed incident occurred at Netaji Subhas Colony at 9.30 PM. At that time he was in his house. He heard hue and cry from the eastern side of his house. He came out and found that his son suffered injury on the abdomen. His son informed Mahendra had fired at him by a fire arm. He raised hue and cry. His son was taken to Raiganj Sadar Hospital and thereafter, shifted to a nursing home at Siliguri where he expired on the next day. He lodged written complaint scribed by Tarun Roy (PW 10) which was treated as First Information Report.

9. During cross-examination, he stated he was a resident of Netaji Subhas Colony and after the incident they had gathered 50 meters away from their house.

10. Dipali Sarkar (PW 2) is the mother of the deceased and wife of PW 1. She corroborated PW 1 and deposed she heard her son shouting that Mahendra had fired at him. She came out and found her son with bleeding injury on his abdomen.

11. Tula Sarkar (PW 3) is the wife of the deceased. She stated on the date of incident, there was a hot altercation between her husband and Mahendra. Her father-in-law asked her to intervene. She went out and found her husband coming towards their house and Mahendra was fleeing from the spot. Her husband stated Mahendra had fired at him. Her husband was taken to Raiganj District Hospital wherefrom he was shifted to a nursing home at Siliguri where he died. She remained unshaken during cross-examination.

12. Dr. Probir Kumar Deb (PW 5) is the Autopsy Surgeon. He found the following injuries:-

“On examination I found that Raigor mortis was present all over the body. Stiched wound was present 1.5 inches X 1 Inch., 4 inches below left nipple. Stiched wound was present 1 inch X .5 inches, 4 inches below left axial. Abrasion colored was pres